Indictment

For the television film, see Indictment: The McMartin Trial.

Not to be confused with Indiction.

An indictment ( /ɪnˈdaɪtmənt/ in-dyt-mənt), in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an offence that requires an indictment.

Previously, an indictment was handed up by a grand jury, which returned a "true bill" if it found cause to make the charge, or "no bill" if it did not find cause. Most common-law jurisdictions (except much of the United States) have abolished grand juries.

Brazil

In Brazil, an indictment (called denúncia) is issued by the public prosecutor, a member of the Public Ministry, and it is the document that starts the criminal prosecution.

The denúncia for most offenses is exclusively issued by the public prosecutor. However, some offenses (like rape or threatening) require the victim to sign a permission (called representação) in order to allow the prosecutor to file the indictment.

The indictment for lesser offenses (notably those against the victim's honor, such as defamation or calumny) can be filed only by the victims themselves (represented by a lawyer), in which case it is called queixa-crime.

France

In France, an indictment is issued by the "juge d'instruction".

India

The criminal law in India is derived from the colonial-era British system and is codified in the Criminal Procedure Code (CrPC). In India criminal offenses are divided into two broad categories. Cognizable offenses and Non-cognizable offenses. The police is empowered to start investigating a cognizable offense. At that stage, the complaint is considered merely an accusation. However, in both cognizable and non-cognizable offenses, the trial starts only with the "Framing of Charges" which is similar to the concept of indictment. The trial court does not proceed with the trial if the evidence is insufficient to make out a charge.

Tunisia

Tunisia, a fomer French colony, is still following the feudal French judiciary system since independence in 1956, even though it is now conducted in Arabic.

United Kingdom

England and Wales

In England and Wales (except in private prosecutions by individuals) an indictment is issued by the public prosecutor (in most cases this will be the Crown Prosecution Service) on behalf of the Crown, i.e. the Monarch, who is the nominal plaintiff in all public prosecutions under English law.

This is why a public prosecution of a man called Mr. Smith would be referred to in writing as "R v Smith" (or alternatively as "Regina v. Smith" or "Rex v. Smith" depending on the gender of the Sovereign reigning at the time of the case; Regina and Rex being Latin for "Queen" and "King" respectively) (and in either case may informally be pronounced as such) and when cited orally in court would be pronounced "the Queen against Smith" or "the King against Smith" (again depending on the gender of the reigning Sovereign).^[1]

All proceedings on indictment must be brought before the Crown Court.^[2] By virtue of practice directions issued under section 75(1) of the Supreme Court Act 1981, an indictment must be tried by a High Court judge, a Circuit judge or a recorder (which of these it is depends on the offence).

As to the form of an indictment, see the Indictments Act 1915 and the Indictment Rules 1971 made thereunder.

As to the prefering of a bill of indictment and the signing of an indictment, see section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 and the Indictments (Procedure) Rules 1971 (S.I. 1971/2084) made thereunder, as amended and modified by the Indictments (Procedure) (Amendment) Rules 1983 (S.I. 1983/284), the Indictments (Procedure) (Amendment) Rules 1988 (S.I. 1988/1783), the Indictments (Procedure) (Amendment) Rules 1992 (S.I. 1992/284), the Indictments (Procedure) (Amendment) Rules 1997 (S.I. 1997/711), the Indictments (Procedure) (Modification) Rules 1998 (S.I. 1998/3045) and the Indictments (Procedure) (Amendment) Rules 2000 (S.I. 2000/3360).

Northern Ireland

See the Indictments Act (Northern Ireland) 1945.

Scotland

In Scotland, all of these cases brought in the High Court of Justiciary are brought in the name of the Lord Advocate and will be tried on Indictment. In the Sheriff Court where trials proceed using the Solemn procedure they will also be tried on indictment and are brought in the name of the Procurator Fiscal.

United States

The Fifth Amendment to the Constitution of the United States states in part: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia when in actual service in time of War or public danger".

In many, but not all, United States jurisdictions that use grand juries, prosecutors often have a choice between seeking an indictment from a grand jury and filing a charging document directly with the court. Such a document is usually called an information, accusation, or complaint, to distinguish it from a grand-jury indictment. To protect the suspect's due-process rights in felony cases (where the suspect's interest in liberty is at stake), there is usually a preliminary hearing, at which a judge determines whether there was probable cause to arrest the suspect who is in custody. If the judge finds such probable cause, he or she binds, or holds over, the suspect for trial.

The substance of an indictment or other charging instrument is usually the same, regardless of the jurisdiction: it consists of a short and plain statement of where, when, and how the defendant allegedly committed the offense. Each offense usually is set out in a separate count. Some indictments for complex crimes, particularly those involving conspiracy or numerous counts, can run to hundreds of pages; but many an indictment, including one for a crime as serious as murder, consists of a single sheet of paper.

Indictable offenses are normally tried by jury, unless the accused waives the right to a jury trial. Although the Sixth Amendment mandates the right to a jury trial in any criminal prosecution, the vast majority of criminal cases in the United States are resolved by the plea-bargaining process.

Direct indictment

A direct indictment is one in which the case is sent directly to trial before a preliminary inquiry is completed or when the accused has been discharged by a preliminary inquiry.^[3][4] It is meant to be an extraordinary, rarely used power to ensure that those who should be brought to trial are in a timely manner or where an error of judgment is seen to have been made in the preliminary inquiry.^[5]

Sealed indictment

An indictment can be sealed so that it stays non-public until it is unsealed. This can be done for a number of reasons. It may be unsealed, for example, once the named person is arrested or has been notified by police.

See also

• Arraignment
• Complaint
• Preliminary hearing
• Duplicity (law)

References

1. ^ Smith, A.T.H., Glanville Williams: Learning the Law, 13th Edition, 2006, page 44
2. ^ The Senior Courts Act 1981, section 46(1) OPSI
3. ^ "Criminal Code, Revised Statutes of Canada 1985, c. C-46, Section 577". Department of Justice, Canada. 2008-10-09. http://laws.justice.gc.ca/en/ShowDoc/cs/C-46/bo-ga:l_XIX_1::bo-ga:l_XX//en?page=13&isPrinting=false#codese:577. Retrieved 2008-10-29. 
4. ^ "Direct Indictments". Crown Policy Manual. Province of Ontario, Ministry of Attorney General. 2005-03-21. http://www.attorneygeneral.jus.gov.on.ca/english/crim/cpm/2005/DirectIndictment.pdf. Retrieved 2008-10-29. 
5. ^ "Direct Indictments". The Federal Prosecution Service Deskbook. Department of Justice, Canada. 2008-04-04. http://www.justice.gc.ca/eng/dept-min/pub/fps-sfp/fpd/ch17.html. Retrieved 2008-10-29.